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always entail financial benefits for families, and thus denies that recognition of
same-sex marriage necessarily redistributes resources to same-sex couples. The
harm of marriage inequality is thought of primarily as misrecognition rather
than unfair distribution of resources.
272Conceiving the problem thus means
that redistribution is rarely seen as a remedy to heterosexism. It may also ex-
plain why disparate impact claims and affirmative action remedies are often ex-
cluded from legislative proposals to forbid sexual orientation discrimination in
employment.
73Other movements following this recognition model are likely
to run up against the same limits.
is a "movement/countermovement" dynamic in which the Christian Right and LGBT advocates both claim minority group status.
7Each side casts the other as the oppressor, "seeking to use the force of the state to stamp out belief sys- tems with which they disagree."' In the words of one religious liberty scholar:
"Religious minorities and sexual minorities . . . make essentially parallel and mutually reinforcing claims against the larger society."
7This understanding is also reflected in legislative proposals to add sexual orientation to the list of prohibited bases for employment discrimination. Alt- hough religious employers generally must abide by laws forbidding discrimi- nation on the basis of race, sex, national origin, age, and disability,"o they may discriminate on the basis of religion.8 The
2013draft Employment Non- Discrimination Act (ENDA) would have put sexual orientation in the same class as religion, extending broad discretion to religious employers to discrimi- nate on the basis of sexual orientation. As a result, several LGBT-rights or- ganizations withdrew their support for ENDA, arguing that its religious ex- emption "essentially says that anti-LGBT discrimination is different-more
bly, Indiana passed a religious freedom law in March 2015, but under pressure from busi- ness interests, lawmakers immediately amended the law to specify that it would not allow discrimination based on sexual orientation or gender identity. Id.
277. Douglas Nejaime, Inclusion, Accommodation, and Recognition: Accounting for Diferences Based on Religion and Sexual Orientation, 32 HARV.
J.L.
& GENDER 303, 305 n.2, 313 (2009).278. NeJaime, supra note 276, at 1182. This quotation comes from Nejaime's description of the arguments of certain Christian Right advocates, but the same could be said of LGBT rights advocacy that opposes belief systems such as sexism, heterosexism, and homophobia.
279. Id. at 1227 n.245 (quoting Douglas Laycock, Afterword, in SAME-SEX MARRIAGE AND RELI- GIOUS LIBERTY: EMERGING CONFLICTS 189, 189 (Douglas Laycock et al. eds., 2008)).
28o. There is an exception for those employees defined as "ministers," which allows, for example, the Catholic Church to refuse to hire women as priests. Hosanna-Tabor Evangelical Luther- an Church & Sch. v. EEOC, 132 S. Ct. 694, 705-06 (2012) (holding that the first amendment precludes the application of employment discrimination laws to "ministers").
281. 42 U.S.C. § 2000e-1(a) (2012) ("This subchapter [Equal Employment Opportunities] shall not apply ... to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.").
282. Employment Non-Discrimination Act of 2013, S. 815, 113th Cong.
§
6(a) (2013). See generally Mary Anne Case, Legal Protections for the "Personal Best" ofEach Employee: Title VII's Prohibi- tion on Sex Discrimination, the Legacy of Price Waterhouse v. Hopkins, and the Prospect ofEN- DA, 66 STAN. L. REv. 1333, 1375-76 (2014) (discussing the breadth of the draft ENDA's reli- gious exemption).THE YALE LAW JOURNAL
acceptable and legitimate-than discrimination against individuals based on
their race orsex."
NeJaime argues that this problem occurs because same-sex relationships are inappropriately understood as conduct, rather than status. Thus, gay rights are cast as liberties, rather than questions of equality.
8But the revised immu- tability does not provide a workaround for gay rights advocates. Rather, it supports the case for religious exemptions. One advocate of religious exemp- tions acknowledges that "for both same-sex couples and religious objectors 'conduct is fundamental to their identity."'28 The issue is framed as two mi- norities battling over conflicting fundamental choices: the convictions of con- science of religious minorities versus the committed intimate associations of same-sex couples. When the values at stake sound in the same register, ac- commodation seems more reasonable.2
86If the right to same-sex marriage were conceptualized on a different order-for example, like the right to interracial marriage-the case for religious exemptions would lose traction.28
Thus, the new immutability is of limited persuasive value. Moreover, to the extent that legislatures and courts accept traits as immutable aspects of person- hood, they may afford lesser protection to those traits than other attributes covered by antidiscrimination law.
283. Joint Statement on Withdrawal of Support for ENDA and Callfor Equal Workplace Protections for LGBT People, LAMBDA LEGAL: BLOG (July 8, 2014), http://www.1ambdalegal.org/blog /20140708_joint-statement-withdrawal-support-enda [http://perma.cc/Z3CW-XWSS].
284. NeJaime, supra note 276, at 1226-29.
285. Id. at 1229 (quoting Thomas C. Berg, What Same-Sex-Marriage and Religious-Liberty Claims Have in Common, 5 Nw. J.L. & Soc. POL'Y 2o6, 212 (2010)).
286. See, e.g., Mark L. Rienzi, Substantive Due Process as a Two-Way Street: How the Court Can Reconcile Same-Sex Marriage and Religious Liberty, 68 STAN. L. REV. ONLINE 18, 19 (2015) ("When the Court recognizes a right because it is deeply personal and important, govern- ments are not free to force unwilling parties to participate in or support the exercise of that right."); Robin Fretwell Wilson & Anthony Michael Kreis, Embracing Compromise: Marriage Equality and Religious Liberty in the Political Process, 15 GEO.
J.
GENDER & L. 485, 492 (2014) ("The same fundamental values of personal liberty that support an individual's right to live according to his or her sexual identity also support an individual's right to live according to his or her religious convictions.").287. Even one advocate of religious exemptions seems to admit as much. See NeJaime, supra note 276, at 1229 (discussing Thomas Berg's admission that "[g]iven equality's absolute nature, it is hard to see how it can allow for any exemptions" (quoting Berg, supra note 285, at 212));
cf James M. Oleske, Jr., The Evolution ofAccommodation: Comparing the Unequal Treatment of Religious Objections to Interracial and Same-Sex Marriages, So HARV. C.R.-C.L. L. REV. 99, 103
(2015) (noting "the dearth of equal protection analysis in the modern debate over discrimi- nation against same-sex couples" as compared to interracial marriage).
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III. APPLYING THE REVISED IMMUTABILITY TO NEW CONTEXTS